State v. Lobue

                                        13

         Argued and submitted August 23, 2019, affirmed May 6, 2020


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                   ZACHARY MICHAEL LOBUE,
                       Defendant-Appellant.
                     Lane County Circuit Court
                       17CR64289; A166681
                                    

    Defendant appeals a supplemental judgment imposing restitution after his
conviction on a guilty plea for one count of unauthorized use of a vehicle, assigning error to the trial court’s award of restitution for damages that he asserts
were not caused by the crime of conviction and to which he did not admit on the
record. Defendant further assigns error to the admission of evidence of damages
in support of the award of restitution and to the court clerk’s imposition of collection fees and a payment schedule for the restitution. Held: The evidence supports
the trial court’s finding that defendant caused the damages to the vehicle, and
the court therefore did not err in taking those damages into account in determining the amount of restitution. Repair estimates submitted by the state and the
victim were admissible in the restitution hearing to establish damages caused
by defendant’s criminal conduct. The trial court did not exceed its authority by
including in the judgment an order authorizing the court to add collection fees
and assessments without further notice and directing the clerk of the court to
include a collection fee and to schedule payments under ORS 161.675.
    Affirmed.



   Charles M. Zennaché, Judge.
   Kyle Krohn, Deputy Public Defender, argued the cause
for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Carson L. Whitehead, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
   Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
   ARMSTRONG, P. J.
   Affirmed.
14                                                             State v. Lobue

           ARMSTRONG, P. J.
         Defendant appeals a supplemental judgment imposing restitution after his conviction on a guilty plea for
one count of unauthorized use of a vehicle, ORS 164.135.1
Defendant assigns error to the trial court’s award of restitution for damages that he asserts were not caused by the
crime of conviction and to which he did not admit on the
record.2 Defendant further assigns error to the admission of
evidence of damages in support of the award of restitution
and to the court clerk’s imposition of collection fees and a
payment schedule for the restitution. We conclude that the
trial court did not err and affirm.
         We begin with a discussion of the relevant statutory
context for imposition of restitution in criminal cases. ORS
137.106(1)(a) requires a trial court to award restitution when
a person is convicted of a crime that the court finds resulted
in economic damages to the victim. State v. Parsons, 

, 

, adh’d to as modified on recons,

, 

 (2017). To support an award of
restitution, the state bears the burden to prove by a preponderance of the evidence that the defendant’s criminal activities caused the victim’s economic damages. Id. at 356-57; see
also State v. McDonald, 

, 

 (2018).
         Restitution is awarded for damages caused by a
defendant’s criminal activities for which the defendant has
been convicted or to which he has admitted. State v. Kirkland,

, 

 (2015). “Criminal activities” are defined in ORS 137.103(1) as “any offense with
respect to which the defendant is convicted or any other
criminal conduct admitted by the defendant.”3

     1
      ORS 164.135(1) provides, in part:
         “A person commits the crime of unauthorized use of a vehicle when:
         “(a) The person takes, operates, exercises control over, rides in or otherwise uses another’s vehicle, boat or aircraft without consent of the owner[.]”
    2
      Defendant also pleaded guilty to possession of methamphetamine; there
are no issues on appeal relating to that conviction.
    3
      ORS 137.106 formerly gave courts discretion to order a defendant to make
restitution as part of a sentence for “pecuniary damages” caused by the defendant’s “criminal activities”:
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 (2020)                                                     15

          A defendant cannot be required to pay restitution
for economic damages resulting from criminal activities for
which he was not convicted or to which he did not admit.
State v. Partain, 

, 

 (2019)
(it is error to impose restitution in a case based on conduct
that is not part of the crime of conviction and that the defendant did not admit to committing); State v. Dorsey, 

, 

 (2013). A trial court may not
impose restitution based on criminal activities that occurred
outside the time period covered by a defendant’s plea agreement. State v. Howard, 

, 

(2018); State v. Muhammad, 

, 

 (2014).
         A defendant’s criminal activities must be a “but-for”
cause of the victim’s damages. Howard, 

;
see State v. Akerman, 

, 

(2016) (record must support a nonspeculative inference that
there is a causal relationship between defendant’s criminal
activities and victim’s economic damages).
         The imposition of restitution is a part of sentencing.
State v. Dillon, 

, 

 (1981). In determining whether a defendant has engaged in criminal activity that resulted in a victim’s economic damage, the court
may consider any evidence that the court can consider at a
sentencing hearing. State v. Sigman, 

,

 (1996).

         “(1) When a person is convicted of criminal activities, … which have
     resulted in pecuniary damages, … in addition to any other sentence it
     may impose, the court may order that the defendant make restitution to the
     victim.”
ORS 137.106 (1997). Courts referred to ORS 137.103(1) for the definition of “criminal activities.” State v. Dillon, 

, 

 (1981); State
v. Seggerman, 

, 

 (2000) (“Defendant cannot be
required to pay restitution for pecuniary damages arising out of criminal activity for which he was not convicted or which he did not admit having committed.”).
The legislature amended ORS 137.106(1) in 1999 to require the imposition of restitution for the full amount of a victim’s “economic damages” resulting from the
defendant’s “crime.” Or Laws 1999, c. 1051, § 124. Our case law continues to refer
to the definition of “criminal activities” in ORS 137.103(1) for the scope of conduct
subject to restitution. Kirkland, 

. That reference continues to
be appropriate, because ORS 137.103(4)(b) defines a victim as a person “whom the
court determines has suffered economic damages as a result of the defendant’s
criminal activities.” (Emphasis added.)
16                                             State v. Lobue

          We review whether a trial court has complied with
the requirements for imposing restitution for legal error.
State v. Herfurth, 

, 

 (2016),
rev den, 

 (2017). We are bound by the trial court’s
findings if they are supported by any evidence in the record.
State v. Pumphrey, 

, 

 (2014),
rev den, 

 (2015). If the trial court did not make
express findings on a disputed fact, we assume that the
court implicitly found the facts consistent with the judgment
entered. State v. Ehly, 

, 

 (1993)
(“If findings of historical fact are not made on all pertinent
issues and there is evidence from which such facts could be
decided more than one way, we will presume that the facts
were decided in a manner consistent with the court’s ultimate conclusion.”). Accordingly, we summarize the relevant
facts consistent with the trial court’s explicit and implicit
findings.

         Someone stole the victim’s white 1986 Toyota pickup
truck on March 6, 2017. While on patrol early in the morning
on March 23, 2017, Senior Trooper Ellis saw defendant looking under the hood of a black 1986 Toyota pickup parked on
the side of the road. Later that morning, Ellis stopped defendant in the same vehicle for traffic violations. Defendant did
not have a registration for the pickup, and Ellis noticed that
it was in poor condition. The pickup had a “hasty, unprofessional paint job,” and its siderails and tailgate had been
removed. Ellis smelled fresh paint and noticed paint overspray on the pickup’s front license plate. Defendant told Ellis
that he had not registered the pickup because he used it for
off-road driving and that he had painted it with a spray can.
The bed of the pickup was loaded with junk covered by a
tarp.

         Ellis suspected that the vehicle was stolen, determined that the pickup’s license plates did not match its VIN,
and learned from defendant that the plates were registered
to a vehicle owned by defendant’s girlfriend. The pickup’s
VIN belonged to the victim’s white 1986 Toyota pickup that
had been reported stolen on March 6. Ellis saw a large number of filed-down keys inside the pickup, including a key
from a Toyota vehicle.
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 (2020)                                  17

          Ellis arrested defendant, and defendant ultimately
pleaded guilty to unauthorized use of a vehicle. The charging
instrument alleged that defendant, “on or about March 23,
2017, … did unlawfully and knowingly take, operate, exercise control over, ride in or otherwise use a vehicle … without the consent of the owner.”
          At the restitution hearing, the victim testified that
he had purchased the pickup in 2014 for $2,700 and had
maintained it, and that it was in good condition at the time
that it was stolen. Ellis described the damage to the pickup
on the day that it was recovered and testified that people
often alter the appearance of a vehicle to try to conceal that
it is stolen. The victim submitted estimates for the pickup’s
repair costs exceeding $3,000, including repair of a cracked
windshield, wheel alignment, removal of a broken key in the
ignition, replacement of a damaged clutch, replacement of
the pickup’s bed, and restoration of the paint job. The state
presented evidence that the vehicle’s high market value was
$2,800 on the day that it was stolen. Because the repair
costs would exceed the high market value, the state sought
as restitution only the market value plus the cost to tow the
vehicle the day that it was recovered. See State v. Rasool
Islam-Islam, 

, 

 (2016) (the measure of restitution for a stolen item is the fair market value
of the item when it was stolen); State v. Onishchenko, 

, 

, rev den, 

 (2012) (measure of damages for restitution is reasonable market value
of the goods converted at the time and place of conversion).
         Defendant asserted that, because he had pleaded
guilty to unauthorized use of the vehicle on a specific date—
March 23, 2017—and because the state had not presented
evidence that the vehicle’s damages occurred on that date,
the only restitution that could be awarded was for the cost
of towing. Defendant further contended that his statement
to Ellis about having painted the pickup could not be considered as an admission of criminal activity, because it was
not an unequivocal admission made on the record with the
formalities of a guilty plea.
        The trial court noted that the charging instrument
had alleged that defendant did “take” the vehicle and that
18                                             State v. Lobue

defendant’s guilty plea necessarily included an admission
to that allegation. The court reasoned that, based the large
number of broken keys found in the vehicle, including a broken key in the pickup’s ignition, defendant “probably took”
the pickup. But the court concluded that it did not need to
make a finding that defendant stole the vehicle in order to
award restitution. The court attributed the vehicle’s damages to defendant’s unlawful possession and use of the vehicle. The court explicitly rejected defendant’s contention that
the statement made to Ellis that he had painted the pickup
could not be considered in assessing restitution because it
had not been made on the record in open court. The court concluded that, because the cost to repair the vehicle exceeded
its fair market value, restitution was limited to the pickup’s
fair market value of $2,800, plus the towing cost.
         On appeal, the issue is whether the damage to the
vehicle occurred as a result of defendant’s criminal activities as defined in ORS 137.103(1) (“[A]ny offense with respect
to which the defendant is convicted or any other criminal
conduct admitted by the defendant.”). Defendant does not
dispute that the vehicle was in damaged condition while in
his possession and that the victim suffered economic loss.
But, with the exception of the towing expense, he contends
that there is no evidence that the damages that the court
considered in awarding restitution were caused by the crime
of conviction or criminal activity to which defendant pleaded
guilty, which was driving the vehicle on March 23. The state
responds that the evidence permits the inference that defendant caused the damages to the vehicle when he possessed
and used it, including on March 23.
         In reviewing the sufficiency of the record to support
the trial court’s finding of causation, we view the evidence in
the light most favorable to the state. Kirkland, 

. The trial court’s findings will be upheld if supported
by any evidence. Pumphrey, 

. We conclude
that there is evidence in support of the court’s findings.
         As an initial matter, we reject defendant’s contention that his statement to Ellis that he had spray-painted the
pickup could not be considered under ORS 137.103, because
it was not an unequivocal admission with the formalities
Cite as 

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of a guilty plea. Even if it was not a formal admission of
criminal guilt, defendant’s statement to Ellis that he had
painted the pickup was evidence that the court could consider in determining whether the damage to the vehicle
occurred during defendant’s unauthorized use. See State v.
Rosette, 

, 

 (2017) (in sentencing the defendant for first-degree theft of a Bobcat, trial
court did not err in awarding restitution for damages that
occurred during the time period the defendant admitted the
Bobcat was in his possession). Defendant’s statement, along
with Ellis’s description of the vehicle’s appearance and the
smell of fresh spray paint is evidence from which it could be
inferred that defendant spray painted the vehicle.

         There is evidence that defendant damaged the
pick-up in other ways. Ellis testified that defendant told him
he had been driving the pickup off-road, which puts stress
on a vehicle and could have damaged the clutch. Defendant
told Ellis that he suspected the pickup was stolen. Ellis, who
observed the fresh paint, the altered pickup bed, and the
switched license plates, testified, based on his experience,
that he thought the vehicle had been stolen and that people often alter the appearance of a vehicle to conceal that it
may be stolen. That is some evidence from which the trial
court could make a nonspeculative inference that defendant
altered the vehicle’s appearance at some time while it was in
his possession.

         Contrary to defendant’s contention, the state was
not required to present evidence of the specific date on which
the vehicle’s damages occurred. The evidence allows a possible inference that the damages occurred during defendant’s
possession and use of the vehicle to which he pleaded guilty,
including on March 23. Restitution for those damages does
not impose liability on defendant for criminal conduct to
which he did not plead. Cf. Dorsey, 

 (restitution could not be imposed for discrete instances of theft
that had occurred outside of the 16 days during which the
defendant admitted that the criminal conduct was ongoing);
State v. Howett, 

, 

 (2002) (restitution could not be imposed for discrete instances of theft
that occurred outside of the dates stated in the indictment
20                                            State v. Lobue

and to which the defendant pleaded guilty). We conclude
that the evidence supports the trial court’s finding that
defendant caused the damages to the vehicle and that the
court did not err in taking those damages into account in
determining the amount of restitution.
        Defendant raises several assignments of error relating to the state’s evidence of repair costs and the vehicle’s
estimated value, contending that the evidence was hearsay
and should not have been admitted. The rules of evidence
do not apply to restitution hearings, which are a part of
criminal sentencing, Dillon, 

 (“The procedural
requirements for imposition of a sentence of restitution are
those ordinarily associated with sentencing.”); Sigman, 

, and hearsay statements may be admitted if
accompanied by “some minimal indicia of reliability.” United
States v. Petty, 982 F2d 1365, 1369, amended by 992 F2d
1015 (9th Cir 1993). Defendant contends on appeal that the
value estimate lacks minimal indicia of reliability. Because
defendant did not make that argument below, we decline to
consider it. ORAP 5.45(4).
        Defendant contends further that, in the absence
of an ability to cross-examine the persons who made them,
admission of the repair bills and value estimate violated
his right to confrontation under the Due Process Clause of
the Fourteenth Amendment. He contends that a restitution
hearing, like a probation revocation proceeding, involves
a determination of discrete factual issues and therefore
implicates a due process right to confront witnesses. He contends that, as in the probation revocation setting, hearsay
evidence should be admissible in restitution hearings only
after balancing the defendant’s confrontation right against
the government’s reason for denying it. See State v. Wibbens,

, 

 (2010) (adopting Ninth Circuit
balancing test for admissibility of hearsay evidence in probation revocation proceeding, weighing probationer’s interest in confrontation against government’s good cause for
denying it).
        The United States Supreme Court has held that
due process does not prevent a trial court from imposing a
sentence based on hearsay and that a defendant has no due
Cite as 

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process right to confrontation at sentencing proceedings.
Williams v. New York, 

, 

, 

 (1949) (courts enjoy “wide discretion in the sources and
types of evidence used … in determining the kind and
extent of punishment to impose within limits fixed by law,”
including out-of-court affidavits). The Ninth Circuit has not
extended the rationale that we adopted in Wibbens concerning probation revocation proceedings to confrontation rights
in the sentencing context, see United States v. Littlesun, 

 (9th Cir 2006) (rejecting extension of confrontation rights to sentencing), and we also decline to do so.
The personal liberty interests at stake in a probation revocation proceeding are not implicated in setting restitution
as a part of sentencing. See Morrissey v. Brewer, 

, 

, 

 (1972) (explaining that
due process requirements, including confrontation rights,
for parole revocation hearings, stem from the parolee’s liberty interest). The trial court did not err in admitting the
state’s evidence to establish the amount of restitution.
         ORS 161.675(1) tolls enforcement of monetary obligations for incarcerated defendants unless the court makes
findings about the defendant’s ability to pay:
       “(1) When a defendant, as a part of a sentence or as
   condition of probation or suspension of sentence, is required
   to pay a sum of money for any purpose, the court may order
   payment to be made immediately or within a specified
   period of time or in specified installments. If a defendant is
   sentenced to a term of imprisonment, any part of the sentence that requires the payment of a sum of money for any
   purpose is enforceable during the period of imprisonment
   if the court expressly finds that the defendant has assets to
   pay all or part of the amounts ordered.”
Defendant contends that the trial court exceeded its authority by (1) including in the judgment an order authorizing the
court to add collection fees and assessments without further
notice and (2) directing the clerk of the court to include a
collection fee and to schedule payments under ORS 161.675.
The court did not exceed its authority. The court is authorized by ORS 1.202 to add fees for collecting monetary obligations without further notice to a defendant, if the court
gives the defendant “a period of time in which to pay the
22                                                              State v. Lobue

obligation.” 4 Additionally, for the reasons explained in State
v. Foos, 

, 

 (2018) (“When a
judgment directs a clerk of the court to act pursuant to a
statute, we assume the clerk will act in accordance with that
statute.”), we conclude that the court did not err in directing
the clerk of the court to include a collection fee and to schedule payments under ORS 161.675.5
           Affirmed.




     4
      ORS 1.202(1) provides:
         “All circuit courts and appellate courts of this state, and all commissions,
    departments and divisions in the judicial branch of state government, shall
    add a fee of not less than $50 and not more than $200 to any judgment that
    includes a monetary obligation that the court or judicial branch is charged
    with collecting. The fee shall cover the cost of establishing and administering
    an account for the debtor and shall be added without further notice to the
    debtor or further order of the court. The fee shall be added only if the court
    gives the defendant a period of time in which to pay the obligation after the
    financial obligation is imposed. Fees under this subsection shall be deposited
    in the General Fund.”
    5
      If, as defendant contends, the clerk has taken action inconsistent with ORS
161.675, that is a matter to be taken up in the circuit court. State v. Ciraulo, 

, 

 (2020); State v. Saunders, 

, 

(2019).